It is a sad indictment of the Khmer Rouge tribunal that after seven years and the expenditure of more than US$200 million, Cambodians now face the prospect that only three people will be held legally accountable for the destruction of their country. Men who ordered the deaths of tens of thousands of people are being allowed by Hun Sen and an indifferent international community to live out their lives in freedom, often in the same village or on the same street as their victims.

Brad Adams, Asia director

(New York) – The convictions of two former Khmer Rouge leaders for crimes against humanity are welcome but are long overdue and do not make up for the fundamental failures of the Cambodian-controlled and United Nations-assisted Khmer Rouge tribunal, Human Rights Watch said today. On August 7, 2014, the Extraordinary Chambers in the Courts of Cambodia (ECCC) convicted Nuon Chea, 88, and Khieu Samphan, 83, and sentenced them to life in prison.

The trial followed years of obstruction by Prime Minister Hun Sen, a former Khmer Rouge commander. Many Khmer Rouge responsible for large-scale atrocities during the group’s rule from 1975-79 continue to live freely, some in the same communities in which they carried out mass killings, forced labor, and other abuses. Hun Sen has said he would rather see the court fail than take up more cases, raising concerns that he is protecting former Khmer Rouge fighters now in the ruling Cambodian People’s Party (CPP).

“The convictions of Nuon Chea and Khieu Samphan are too little and too late to save the Khmer Rouge tribunal from being regarded as a failure,” said Brad Adams, Asia director. “The goal of justice for Khmer Rouge victims has been irrevocably tarnished by Prime Minister Hun Sen’s political interference, the failure to bring more cases, long delays, and pervasive corruption. What should be a day of celebrating justice is instead a reminder of missed opportunities.”

Khmer Rouge rule under the leadership of Pol Pot, Nuon Chea, Khieu Samphan, and others resulted in the deaths of as many as two million Cambodians, more than one-quarter of the population. Pol Pot, known as “Brother Number One,” died in 1998 after years of protection from Thailand and China.

Nuon Chea, Pol Pot’s chief deputy, and Khieu Samphan, the president of Democratic Kampuchea, as the country was called under Khmer Rouge rule, were put on trial at the tribunal in 2011, charged with genocide, war crimes, crimes against humanity, and murder, among others.

In 2013 the case was split into separate parts. The convictions handed down were primarily related to human rights abuses resulting from the forced evacuation of Phnom Penh, the capital, and other urban areas after the Khmer Rouge military victory in 1975. A second case relating to mass executions is ongoing, but the age of the defendants and the costs of prosecuting people who have been sentenced to life in prison have raised questions about whether a second trial will be completed.

“Cambodia is the country where the term ‘Killing Fields’ was coined, but this trial did not address how the Khmer Rouge systematically killed people it considered their enemies and dumped them in mass graves,” Adams said. “The trial barely scratched the surface of the crimes committed by the Khmer Rouge.”

At the direction of Hun Sen, government-installed Cambodian judges, prosecutors, and other court personnel have obstructed investigations and trials. The government did not require its members to provide evidence to the tribunal’s judicial investigation and trial proceedings. Serious corruption allegations affecting the proceedings have not been adequately investigated.

Cambodian judges and prosecutors have successfully blocked the arrest and indictment of five additional suspects whom UN prosecutors have named as responsible for serious crimes during the Khmer Rouge period. Hun Sen publicly said on multiple occasions that there should be no further trials. For instance, in a March 2009 speech, he stated that if attempts were made to expand the number of suspects beyond those he wanted prosecuted, he would instead have the tribunal fail. He also said that if efforts to expand the scope of prosecution persisted, he would “pray for the court to run out of money” as a result of donor country dissatisfaction, and would prefer the departure of the international prosecutor and international judges to trials of additional suspects.

“It is a sad indictment of the Khmer Rouge tribunal that after seven years and the expenditure of more than US$200 million, Cambodians now face the prospect that only three people will be held legally accountable for the destruction of their country,” Adams said. “Men who ordered the deaths of tens of thousands of people are being allowed by Hun Sen and an indifferent international community to live out their lives in freedom, often in the same village or on the same street as their victims.”

Human Rights Watch expressed concern that donors and other key governments have failed to make continued support for the tribunal contingent on the end of political interference, cooperation from the Cambodian government in further investigations, and allowing further cases to be filed based on the evidence and professional judgment of independent judges and prosecutors.

“Instead of issuing statements congratulating the Khmer Rouge tribunal on its long overdue verdicts, Japan, the European Union, Australia, the US, and others should be focussing on justice for victims,” Adams said. “Are they going to be silent partners in Hun Sen’s manipulation of justice, or will they fight for victims and survivors to have a credible judicial process?”

Background on Attempts to Bring the Khmer Rouge Leadership to Justice
The Khmer Rouge took power in April 1975, at the end of the United States’ war in Indochina. Led by Pol Pot and Nuon Chea, they ruled the country until January 7, 1979, when Vietnam drove them out. Estimates suggest that as many as two million of Cambodia’s eight million people were killed or died from disease, starvation, or forced labor during this period.

Khmer Rouge leaders could have been apprehended after their defeat by Vietnam, but China and Thailand armed and financed the Khmer Rouge forces that had escaped across the Thai border to try to force the Vietnamese army to end its occupation of Cambodia.

As part of their cold war policies, the Carter and Reagan administrations in the United States and the Thatcher government in the United Kingdom, along with Malaysia and Singapore, supported this policy and protected the Khmer Rouge from any efforts at justice or accountability. The Khmer Rouge subsequently killed tens of thousands more Cambodians and continued a jungle insurgency for almost two more decades.

In 1996, Hun Sen announced a political deal with a senior Khmer Rouge official, Ieng Sary, to grant him amnesty under domestic law. In 1997, Hun Sen signed a letter to the UN secretary-general at the time, Kofi Annan, asking for an international tribunal for the Khmer Rouge. Yet when the Khmer Rouge collapsed in internal fighting in 1998, Hun Sen backtracked. On December 25, 1998, he presided over a champagne toast at his residence with Nuon Chea and Khieu Samphan, saying that Cambodians should “dig a hole and bury the past.” Public opinion in Cambodia quickly turned against this announcement, forcing Hun Sen into negotiations with the United Nations to create an accountability mechanism meeting international standards.

In 1999, a UN Group of Experts recommended an international tribunal, warning of political interference, corruption, and a lack of competence in the Cambodian court system. But Hun Sen rejected the proposal, wanting to maintain control of the process. He also rejected a UN proposal for a mixed court with a majority of international judges and an independent, international prosecutor.

The slow pace of establishing the tribunal reflected a longstanding policy articulated by Hun Sen during internal discussions with other former Khmer Rouge members at the highest levels in his ruling Cambodian People’s Party. For example, Hun Sen explained in a February 2000 party central committee meeting that stalling would be his main tactic to assert control over the UN and the tribunal. This allowed the government to play what a Cambodian analyst, Lao Mong Hay, rightly predicted in 2000 would be a long-term “cat and mouse game” to “delay to wear out the patience of the UN.”

In 2002 the UN announced that it was pulling out of negotiations with Hun Sen to create a tribunal. Annan concluded that “interference by the executive with the independence of the judiciary” in Cambodia meant that “established international standards of justice, fairness and due process might therefore not be ensured.” The UN was fully aware that the government would use delaying tactics in negotiations to obtain a court it could control.

In February 2002, Hans Corell, the chief UN negotiator, warned that foot-dragging and convoluted judicial decision-making procedures meant the tribunal would be a “monster court … unable to produce a final judgment” since it was likely that key figures among the accused would die before that happened, given their already advanced age. He also foresaw that this would make it inevitable that the tribunal would be “extremely costly.”

However, UN member countries, led by the US, Japan, France, and Australia, forced the UN to resume negotiations. This led to an agreement to create the tribunal with a majority of judges appointed and controlled by Hun Sen, and a minority of judicial officers nominated by the UN secretary-general. Judges would make some decisions according to a complicated “super-majority” formula that recognized but sought to mitigate the inevitability of government interference in the court.

Justice Denied
Other than Nuon Chea and Khieu Samphan, only one other trial has been completed, of Kaing Guek Eav, alias Duch, the chairman of the Khmer Rouge S-21 Security Office in Phnom Penh known as Tuol Sleng. Duch confessed to overseeing mass murder and torture at Tuol Sleng and was convicted of crimes against humanity and war crimes. Approximately 14,000 people were tortured and murdered at S-21. Duch was convicted of war crimes and crimes against humanity. He was sentenced to life in prison in February 2012.

Two others have been charged but did not stand trial. Former Khmer Rouge Foreign Minister Ieng Sary died in March 2013 while on trial with Nuon Chea and Khieu Samphan. Ieng Sary’s responsibility for the regime’s crimes derived from his position as a permanent member of the Khmer Rouge Standing Committee, which formulated policy and oversaw its implementation nation-wide. As foreign affairs minister, he also directly oversaw the purge of ministry officials, sending many accused of treason for torture and execution.

Ieng Thirith, the wife of Ieng Sary and the former Khmer Rouge social action minister, was ruled unfit for trial in November 2011 due to worsening dementia. She was subsequently released from detention under judicial supervision.

“Hun Sen asked the UN in 1997 for assistance in holding Khmer Rouge leaders accountable, but since then has done everything in his power to stymie justice and the tribunal’s work,” Adams said. “Hun Sen bears primary responsibility for denying justice to the victims of Khmer Rouge atrocities. History will judge him harshly.”